IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 14, 2001 Session

STATE OF TENNESSEE v. ERNEST EDWARD WILSON

 Appeal from the Criminal Court for Davidson County

No. 98-D-2474 J. Randall Wyatt, Jr., Judge

No. M2000-01997-CCA-R3-CD - Filed October 17, 2001

DAVID H. WELLES, J., dissenting.

I respectfully dissent from the majority's holding that the trial court’s erroneous failure to

instruct the jury on reckless homicide and criminally negligent homicide as lesser-included offenses

of first degree murder is harmless beyond a reasonable doubt.

The majority holds that, under State v. Williams, 977 S.W.2d 101 (Tenn. 1998), any error

in declining to give an instruction on reckless homicide is harmless beyond a reasonable doubt

because the jury was instructed regarding voluntary manslaughter, but convicted the Defendant of

second degree murder, thereby implicitly rejecting all lesser-included offenses below voluntary

manslaughter. In Williams, the defendant was charged with first degree murder, and the jury was

instructed on the lesser included-offense of second degree murder. Id. at 106. The supreme court

reasoned that because the jury rejected the immediately lesser offense of second degree murder, it

“necessarily rejected all other lesser offenses, including voluntary manslaughter,” which was not

charged by the trial court. Id. Therefore, the failure to instruct the jury on the offense of voluntary

manslaughter was harmless error. Id.

However, because of the unique nature of voluntary manslaughter among homicide offenses,

I cannot agree that in the present case a strict Williams analysis is applicable, and that the failure to

charge reckless homicide was harmless beyond a reasonable doubt. Voluntary manslaughter is “the

intentional or knowing killing of another in a state of passion produced by adequate provocation

sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-

211(a). The requirement of “adequate provocation” transforms what might otherwise be a first or

second degree murder into the lesser included offense of voluntary manslaughter. Thus, although

voluntary manslaughter has the same statutory mens rea as first or second degree murder —

intentional or knowing — the requirement that the killing be done in a “state of passion” produced

by adequate provocation takes voluntary manslaughter outside of the traditional line of homicide
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culpability categories: intentional, knowing, reckless, and negligent. Therefore, the use of voluntary

manslaughter as a “buffer” lesser-included offense in a Williams analysis is unreliable.

Furthermore, in Williams the jury found the defendant guilty of first degree premeditated

murder. See Tenn. Code Ann. § 39-13-202(a)(1). A conviction for first degree premeditated murder

requires a finding that the killing was done “after the exercise of reflection and judgment.” Tenn.

Code Ann. § 39-13-202(d). A finding of premeditation requires the jury to determine that the

defendant was “sufficiently free from excitement and passion as to be capable of premeditation.”

Id. Conversely, voluntary manslaughter requires that the alleged killing take place “in a state of

passion produced by adequate provocation sufficient to lead a reasonable person to act in an

irrational manner.” Tenn. Code Ann. § 39-13-211(a). Therefore, because the jury in Williams found

the Defendant killed the victim while sufficiently free from passion as to be capable of

premeditation, there is no reasonable possibility that the same jury would have found that the

Defendant killed the victim while in a state of passion caused by adequate provocation. A finding

of premeditation sufficient to support a conviction for first degree murder thus clearly leads to the

conclusion that the jury would not have found the state of passion required to transform the crime

to voluntary manslaughter, and thus solidifies a conclusion that any error in failing to charge the jury

with voluntary manslaughter is harmless beyond a reasonable doubt.

In the present case, the jury convicted the Defendant of a knowing killing but was precluded

from considering whether the Defendant acted with the immediately lesser state of mind of

recklessness. The jury was instructed regarding first degree murder, second degree murder, and

voluntary manslaughter. The jury returned a verdict for second degree murder.

In a case where little or no evidence of provocation exists, the logical immediate lesserincluded offense of second degree murder is reckless homicide. What distinguishes voluntary

manslaughter from an intentional or knowing killing is not a lesser mental state, but rather, the

extenuating circumstance of adequate provocation. In the Defendant’s case, failure to charge the jury

as to reckless homicide denied it the opportunity to consider the immediate lesser-included offense

supported by the facts. The Defendant testified that he fired the gun in order to scare the victim, and

that he never intended to shoot the victim. He said that he wanted to shoot “close to him” and that

the shot that hit the victim was “supposed to be a warning shot.” Viewing this testimony in the light

most favorable to the finding of the lesser-included offense and without making judgments on

credibility, I believe that the facts within the record are sufficient to support a conviction, and

therefore, a jury instruction on reckless homicide. Accordingly, the trial court erred in not instructing

the jury regarding reckless homicide, and I cannot say that error was harmless beyond a reasonable

doubt.

For the aforementioned reasons, I would reverse the judgment of the trial court and remand

this case for a new trial.

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DAVID H. WELLES, JUDGE